What Is the Difference between Plagiarism and Inspiration? A Lawyer Explains
What Is the Difference between Plagiarism and Inspiration? A Lawyer Explains
The Chilean lawyer, Juan Pablo Klenner, has dedicated himself to investigating one of the most discussed and least in-depth topics in architecture: copyright in our discipline. Plagiarism, referents or inspirations? It is a discussion that surely falls on deaf ears every time we talk about it among ourselves, but in the legal world it is clearly very well developed. If for some people creativity should not be measured in these terms, for others it is an issue that can go to court.
Following the publication of his book “Architecture too. Copyright for Architects”, we talked to Klenner about what we have always wanted to know, but never dared to ask. “The idea of total originality must be rejected, no one is capable of creating something out of nothing, even in the work with the least external influences,” he warns.
What does this project consist of?
JPK: It is the result of a Fondart National 2016 project, from Fomento a la Arquitectura, on the special relationship between copyright and works of architecture in Chile, from a legal, historical and social point of view.
What are your main conclusions from this book?
JPK: Architecture is also an art and therefore its works are also protected by copyright. I chose the word “also” because there is a profound lack of knowledge of this reality and protection in the sector, as if architectural works were not works of art. It is this ignorance that the research detected and that the book precisely attacks.
The line between plagiarism and inspiration has always been blurred in architecture. Is it possible to differentiate between them in the legal world?
JPK: Unlike in the architectural world, in the legal world there are different levels of influence from one work to the creation of another. First of all, the idea of total originality must be rejected; no one is capable of creating something from nothing, even in the work with the least external influences there are a series of elements and knowledge that come together and allow such a creation.
Firstly, there are those works influenced by the work of others, but in which there is no particular work used as a mould. In this sense, we can take the example given by Enrique Browne in his work ‘Architecture: Critique and New Era’, in which he speaks of Frank Gehry as an architect who “sculpted” his architecture, without us being able to point to a specific work that he adapted to create his works, but rather to the influences he used to build them.
Secondly, there are those works that are derived from a pre-existing work. A derivative work is a work that cannot have been created except by adapting an earlier work that served as a model. Derivative works need the authorization of the owner of the original work to be created, but once they are created, they enjoy the same rights as an original “autonomous” work.
What about plagiarism?
JPK: It is the exact copy of an earlier work, so it is not a new work, but a reproduction. Hence, no new rights are created for anyone, but rather it is the execution of an existing work, which requires the authorisation of its owner.
This way, the question you are really asking is “when is it a work that was created solely on the basis of influences (and therefore needs no authorization), versus a work that was created on the basis of another work that served as a model (and therefore requires the approval of the owner of that work)? And the answer is given by the question: when a work necessarily arises from the adaptation of an earlier work, we are dealing with a derivative work that needs the authorization of a third party. Obviously, this is something that, in most cases, only a court can settle.
What was the reaction of architects when the results were presented?
JPK: One of the questions I had to ask myself when carrying out the research was whether the poor exercise of copyright by Chilean architects was due to a lack of interest or a lack of knowledge. In this respect, although there is a clear refusal on the part of national architects to go to court -which is extremely logical and understandable-, more than a lack of interest there is a lack of knowledge.
In this sense, it is revealing how much attention this research has aroused among architects; almost all the professionals who have heard about it have approached me with doubts, questions, and anecdotes to share and contribute to the work I was developing. As an example, I experienced an important source of dialogue and feedback on my research thanks to my participation in the last two national architectural congresses held by the College of Architects, where I presented some of the advances I had made up to that point.
What advice would you give to architects?
JPK: The first thing I would recommend is to get informed. One of the great gaps in the education of artistic careers in Chile, including architecture, is to focus excessively on the creation of content and almost nothing on the management of that content. The practical and legal gaps when it comes to good professional practice are evident and the problem is that there is little solidarity or union among professionals themselves.
Regardless of which figure is chosen, there is a need for greater communication between architects, all of whom have similar cases to share and which should not have to continue to be replicated by the new generations. In that sense, it could be said that as a guild they are stumbling over and over again over the same stone.